Malone v La Playa Nominees Pty Ltd
[2022] VSC 83
•25 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2018 00285
| RAYMOND MCGREGOR MALONE | Plaintiff |
| v | |
| LA PLAYA NOMINEES PTY LTD (ACN 071 767 863) | First Defendant |
| and | |
| THE REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 & 30 September, 1, 4, 5, 18, 19, 20, 21 & 22 October, 4 November and 1 December 2021 |
DATE OF JUDGMENT: | 25 February 2022 |
CASE MAY BE CITED AS: | Malone v La Playa Nominees Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 83 |
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ADVERSE POSSESSION – Title boundary between two suburban properties – Prior alteration of title boundaries in 2001 – Alleged errors in survey ultimately reflected in registered title boundary – Further application for alteration of title boundaries in 2017 – Caveat lodged by plaintiff and proceedings commenced – Reliability of witnesses – History of ‘fence’ at or about the boundary – Adverse possession – Factual possession – Intention to possess – Estoppel – Transfer of Land Act 1958 (Vic) ss 26R, 41, 42 and 99 – Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 considered and discussed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | AA Walker | T Squared Legal |
| For the First Defendant | KJD Anderson | Kalus Kenny Intelex |
| For the Second Defendant | J Collopy (solicitor; appeared in addresses for part of 1 December 2021) | Land Use Victoria Legal |
HIS HONOUR:
A Introduction
The plaintiff, Ray Malone, said that he purchased 6 Shandford Avenue, Brighton in about January 2011 and moved into the property later that year.
The plaintiff’s neighbours, at 8 Shandford Avenue, Brighton, are Michael Hirsch and Andrea Murkies. They are husband and wife and also directors of the first defendant, which became the registered proprietor of that property in 1995. Prior to that, the property was, relevantly, owned by both of Ms Murkies’ parents and, later, by Ms Murkies’ mother, Adelaide Murkies.
Relations between the present neighbours have never been good. The position was exacerbated by events relating to renovations undertaken by the plaintiff to the house and garden of 6 Shandford Avenue commencing in 2015.
On 3 March 2015, Mr Hirsch, on behalf of the first defendant, wrote to the plaintiff as follows –
I write in regard to your above property and your recently commenced renovations and works.
I wish to avoid any unpleasantness between us and so I want to advise that the brick, cement block, steel wire and wood post fence that is on my property remains my property. This fence is not on the boundary line and is not a jointly owned fence.
In 2001, my surveyors conducted a comprehensive land and boundary survey and utilising this plan of survey and field records my lawyers lodged an adverse possession claim and a realignment of title boundaries claim with the Land Titles office.
This was successful and a new title was issued that clearly shows that this particular fence and all its attachments and items attached to it, are wholly within my property’s boundary and so remain in my property. The face of the fence line facing your property is the new property boundary between our two properties.
I do not want any person to drill into, attach things to, apply anything to, interfere with, destabilise or deleteriously affect my fence in any way please. I do not want anything removed from my fence or anything done to my fence please without my written consent. It would avoid any friction or unpleasantness if this request could be followed and there be no breaches of this request.
Thank you for your understanding.[1]
[1]Exhibit 7.
That was the first step in a sequence of correspondence and other dealings that unfolded between early-2015 to mid-2018. Many of those events formed part of the dispute at trial. Critically, in about 2017 it emerged that the first defendant’s registered title did not cover all of the land under what Mr Hirsch described as ‘my fence’.
At trial, both sides tended to insinuate that the other was to blame for the dispute. In that regard, it came to develop an almost medieval character: a bitter enmity acted out via a fight over strips of land; most of which are underneath ‘the fence’.[2] There was nothing in it that could make any economic sense.
[2]The precise dimensions of the strips of land in dispute were identified in a document prepared by Mark Stansfield, licensed surveyor, and tendered into evidence, essentially by consent, in the course of the final addresses of the parties: see, Exhibit KK.
I should describe the properties, the boundary, the five ‘sections’ comprising ‘the fence’ and the structures within it. In that connection, I should say that a view, which took place on the first day of the trial, was invaluable.[3]
[3]See, Amended Notes and Photos from 6 and 8 Shandford Ave, Brighton dated 30 September 2021 (‘Notes and Photos from the View’) – which was accepted by the plaintiff and first defendant to be an accurate record of the substance of the view.
At their respective western boundaries, each property abuts the foreshore reserve at Brighton beach. The boundary between the properties runs essentially west from Shandford Avenue and is the southern boundary to 6 Shandford Avenue and the northern boundary to 8 Shandford Avenue.
The plaintiff and first defendant each retained licensed surveyors in order to define the boundary. In 2017 the first defendant obtained the survey of Myles Sewell and in 2020 the plaintiff obtained the survey of Mark Stansfield. In significant respects there is no difference between these surveys.[4] The real differences concern ‘the fence’ and boundary at ‘sections’ D and E.
[4]Cf., Property Law Act 1958 (Vic) s 272.
The surveys of Messrs Stansfield and Sewell also differ from those of Francis O’Halloran in 1980,[5] Kevin Barge in 2001[6] and Jeremy Pearce in 2017.[7] Mr Stansfield prepared an ‘enlargement’ comparison of the boundary defined by Messrs Stansfield, Sewell, Pearce and Barge respectively.[8] That is attached and marked ‘Annexure 1’.
[5]Exhibit C.
[6]Exhibit A, CB690-691. Exhibit T, CB921-922.
[7]Exhibit D. Mr Pearce also prepared an application for the plaintiff in respect of the boundary defined by his plan of survey, although that application was never lodged: see, Exhibit A, CB646-654.
[8]Exhibit A, CB721. The respective ‘lines’ are blue (Barge), black (Sewell), green (Stansfield) and red (Pearce).
‘Annexure 1’ indicates that there are five ‘sections’ of ‘the fence’: A, B, C, D and E.[9] Section A is adjacent to Shandford Avenue. Section E is adjacent to the foreshore reserve. Sections D, C and B are in between.
[9]The precise measurement of the sections differs slightly as between Mr Stansfield and Mr Sewell. However, during the running of the trial the sections were simply referred to as A, B, C, D and E without attaching much, if any, significance to the measurement differences to which I have referred.
Nothing of substance turns on section A, which was barely mentioned during the trial.
Section B is between the two front garden areas. Prior to mid-November 2017, ‘the fence’ in section B comprised a ‘weld mesh fence’.[10] The fence in section B now comprises a ‘masonry fence’.[11] The ‘masonry fence’ does not stand in precisely the same place as the ‘weld mesh fence’ which preceded it. The difference between the parties concerning section B, for the most part, concerns events at a meeting on 2 November 2017.
[10]As to which, see, for example, photographs 15, 16 and 17 taken by Mr Pearce in 2017: Exhibit A, CB673-674.
[11]See, Notes and Photos from the View, Figs.1 and 2: ‘masonry fence’ (behind trees) shown from 8 Shandford Avenue; and Figs.14 and 15: ‘masonry fence’ (behind trees) shown from 6 Shandford Avenue.
Section C is roughly adjacent to the two residences. It was and still is comprised of a ‘high capped wall’ standing on foundations of concrete brick.[12] The ‘split face concrete bricks’ in the ‘high capped wall’ closely resemble those in the walls of the residence at 8 Shandford Avenue.[13] Since early 2018, as viewed from 6 Shandford Avenue, ‘the fence’ at section C (and sections D and E) has been obscured by a ‘brush fence’ erected on the title to that property.[14] Since 2001 the first defendant has been the registered proprietor of practically the whole of the land under ‘the fence’ at section C. As between Mr Sewell and Mr Stansfield, the difference at section C tapers from 1cm to nothing.
[12]Mr Stansfield gave evidence that a small part of section C is comprised by the ‘lower red brick wall’: see, in particular, T188-189. At other points in the hearing, the premise that no part of the ‘lower red brick wall’ appears in section C appeared to be accepted: see, for example, T542 and T1128-1129.
[13]As to which, see, for example, photograph taken by Mr Stansfield: Exhibit A, CB719 and photographs 8, 9, 14 and 15 taken by Mr Pearce: Exhibit A, CB669-670, 672-673. See also, Notes and Photos from the View, Fig.3.
[14]As to which, see photographs taken by Mr Stansfield: Exhibit A, CB711-719. See also, Notes and Photos from the View, Figs.4 and 13.
Section D commences towards the rear of the residence at 8 Shandford Avenue. Viewed from 8 Shandford Avenue, ‘the fence’ at section D appears to be a continuation of the ‘high capped wall’,[15] however part of it is comprised by the ‘lower red brick wall’.[16] In that regard, Mr Stansfield prepared two further enlargements attached and marked ‘Annexure 2’.[17] Enlargement No 1 purports to mark out the ‘lower red brick wall’ (dark orange). Enlargement No 2 purports to mark out –
[15]See, for example, Notes and Photos from the View, Fig.3.
[16]As to which, see photographs taken by Mr Stansfield: Exhibit A, CB714-718. See also, Notes and Photos from the View, Fig.4.
[17]Exhibit B. Those enlargements were explained in written and oral opening by Counsel for the plaintiff. The written opening was amended slightly in oral opening. As to the written opening, see CB1307-1316.
(a) the extent to which the ‘high capped wall’ overlays the ‘lower red brick wall’ (blue);
(b) the extent to which the ‘high capped wall’ does not overlay the ‘lower red brick wall’ (yellow); and
(c) the extent to which the ‘high capped wall’ is located to the south-west of the boundary defined by Mr Stansfield (pink).
The plaintiff contends that in sections D and E there are, in fact, two adjacent ‘single walls’: a ‘skin’ of red bricks to the north of the ‘high capped wall’ to the south.
At section D, there was once a ‘privacy screen’.[18] In a sense, that has been replaced by ‘the brush fence’ to which I have already referred.
[18]As to which, see, for example, photographs 12, 13, 14, 15 and 16 taken by Mr Pearce: Exhibit A, CB671-673. See also, the photographs taken by Mr Nicholson: Exhibit L, CB21-24 and CB26-27. In both sets of photographs the ‘privacy screen’ is covered by a green shade cloth.
Since 2001 the plaintiff has been the registered proprietor of much of the land under ‘the fence’ at section D. As between Mr Sewell and Mr Stansfield, the difference is generally about 5 cm and the area of land in dispute is 3,150 square centimetres (or 0.315 square metres).[19]
[19]Exhibit KK.
Section E is adjacent to the foreshore reserve. Again, the plaintiff contends that there are two ‘single walls’. However, in section E the ‘lower red brick wall’ is largely overlaid by the ‘high capped wall’.[20] The ‘rear pier’ is adjacent, and the gate from 6 Shandford Avenue to the foreshore reserve is attached to it.[21] A vertical line has been produced in the render via the use of different colours.[22]
[20]As to which, see, in particular, photographs taken by Mr Stansfield: Exhibit A, CB714-715 and the Notes and Photos from the View, Fig.4. See also, photograph 6 taken by Mr Pearce: Exhibit A, CB668 and two photographs taken by Mr Nicholson: Exhibit L, CB20-21.
[21]See, for example, photographs taken by Mr Stansfield: Exhibit A, CB711-713.
[22]See, Notes and Photos from the View, Fig.6.
Since 2001 the first defendant has been the registered proprietor of almost all of the land under ‘the fence’ at section E. The area of land in dispute is 3,200 square centimetres (or, 0.32 square metres).[23]
[23]Exhibit KK.
The total area of land in dispute – in respect of all ‘sections’ – is 0.844 of a metre; which is less than a square metre.[24]
[24]Ibid, 0.012+0.170+0.027+0.315+0.320=0.844 square metres.
As I have indicated, controversy arises from a meeting on 2 November 2017. Broadly speaking, the meeting concerned various fence structures. Much evidence was given concerning that and a later meeting on 8 November 2017.
Thereafter, pursuant to s 99 of the Transfer of Land Act 1958 (Vic) (‘the Act’), the first defendant applied to amend the title boundary; this time to accord with the survey of Mr Sewell (‘the 2017 Application’).[25] The 2017 Application included a report of Mr Sewell that stated, among other things –
The occupation along the northern boundary of LUS [Land under survey] is unchanged since AP121181R was completed. A chainage error in the original survey completed by Kevin Barge LS has been noted and this survey rectifies this issue. Occupation on the Southern boundary accords with Title. This boundary is the result of a boundary re-alignment as completed in PS700718.[26]
[25]Exhibit AA.
[26]Exhibit AA, CB1128.
The plaintiff became aware of the 2017 Application in May 2018[27] and, on 15 June 2018, lodged a caveat claiming an interest in the land.[28]
[27]T557.
[28]Exhibits II and JJ.
The plaintiff commenced this proceeding by Writ filed on 11 July 2018.
B The proceeding
It will be evident that the plaintiff commenced this proceeding defensively: in order to take up the dispute provoked by the 2017 Application and the plaintiff’s consequential lodging of a caveat.
The defensive nature of the proceeding is evident in the plaintiff’s pleading.[29] It was also evident in his evidence: he said that he had been ‘quite concerned’ about Mr Hirsch ‘you know, trying to pinch my land’.[30] The real substance of it, however, is that the plaintiff claims that his predecessors built the ‘lower red brick wall’. Consequently, he claims –
[29]Further amended statement of claim dated 16 September 2021, CB1277-1295. See also, plaintiff’s outline of opening submissions dated 17 September 2021, CB1307-1317.
[30]T456.
(a) an interest in fee simple in the land ‘occupied’ by the ‘lower red brick wall’, and the ‘high capped wall’ to the extent that it overlays the ‘lower red brick wall’;
(b) an interest in fee simple in the land to the north-east of what is described as the ‘Stansfield Common boundary’;[31] and
(c) that the first defendant is not entitled to become the registered proprietor of the land sought by the 2017 Application.
[31]Which is the boundary defined by Mr Stansfield; being the ‘green line’ on the ‘enlargement’ diagram comprising Annexure 1.
The plaintiff also claims that an agreement was made between him and the first defendant on 2 November 2017 to the effect that ‘the boundary between 6 and 8 Shandford Avenue would be determined by reference to the existing title boundaries’. The plaintiff says that the defendant is estopped from claiming title to ‘additional land adjacent to the masonry fence [in section B]’.
For its part, the first defendant admits several of the underlying contentions of fact, but denies the plaintiff’s claims and, more particularly, contends by counterclaim that the first defendant and its ‘predecessors in title’ have been ‘in continuous and exclusive possession’ of the land claimed in the 2017 Application since 1983.[32] It follows that, in substance, the first defendant seeks the ‘re-alignment’ of the boundary to the position defined by Mr Sewell.
[32]Defence to the further amended statement of claim and counterclaim dated 4 October 2021. See also, first defendant’s outline of opening submissions dated 20 September 2021, CB1318-1326.
In this context, the plaintiff and first defendant each essentially came to contend that the effect of the survey of Mr Barge and the application to ‘re-align’ the boundary in 2001 (‘the 2001 Application’) had been in error. In that particular connection, the Court ultimately invited the second defendant to make submissions.
It will be evident that, in substance, the plaintiff and first defendant each sought to displace the presently registered title boundary. In that regard, the plaintiff, in effect, relied upon the claimed ‘bona fide occupation’ of the ‘lower red brick wall’. In the end, both parties relied upon the relevant provisions of the Limitation of Actions Act 1958 (Vic) and, in that connection, the principles of the doctrine of adverse possession.[33] In substance, the determinations of the Court in respect of the latter were treated as answering the application (or not) of the former.
[33]See, in particular, T1197-1198, T1224, T1232 and T1256.
In this context, the issues for determination came to be –
(a) the reliability and credit of the witnesses, and any inferences to be drawn from the failure of the parties to call certain identified persons to give evidence;
(b) the construction of ‘the fence’;
(c) whether any agreement or estoppel arose from the meeting on 2 November 2017; and
(d) the claims of ‘ownership’, ‘bona fide possession’ and adverse possession.
C Applicable statutory provisions and principles
Section 99 of the Act provides relevantly as follows –
(1)A proprietor may make application in an appropriate approved form for the amendment of the folio of the Register –
(a)of his own land, in any case in which the boundary area or position of the land differ from the boundary’s area or position of the land actually and bona fide occupied by him and purporting to be so occupied under the title in respect of which the folio of the Register was created, or in any case in which the description in a folio of the Register is erroneous or imperfect on the face of it;
(b)of the land of any other proprietor, where by reason of any error in survey or other misdescription part of such land is actually and bona fide occupied by the applicant together with the land described in the applicant’s folio of the Register.
In the present instance, it was common ground that ‘bona fide occupation’ means adverse possession.[34]
[34]T1256.
An application under s 99 having been granted, and the title boundaries of the properties altered in the Register accordingly, s 41 of the Act states –
No folio of the Register under this Act shall be impeached or defeasible by reasons or on account of any informality or irregularity in any application or instrument or in any proceedings previous to the creation of the folio or the making of any recording on it; and every folio of the Register shall be received in all courts as evidence of the particulars recorded in it and all the recordings of those particulars in the Register, and shall be conclusive evidence that the person named in the folio as the proprietor of, or having any estate or interest in, or power to appoint or dispose of, the land described in the folio is seised or possessed of that estate or interest or has that power.
In argument, counsel for the plaintiff described s 41 as a ‘presumption’, although it is, in form, something more than that: by s 41 a folio of the Register is conclusive evidence of the land described.
That said, s 42(1) of the Act essentially provides that the registered proprietor holds such land free from encumbrances (except in the case of fraud) and otherwise, pursuant to s 42(2), subject to rights including ‘any rights subsisting under any adverse possession of the land’.
Related to the above, by operation of sections 8, 9, 14 and 18 of the Limitation of Actions Act 1958 (Vic), exclusive possession of land beyond the period of 15 years can cause the registered proprietor to lose any right of action to recover it.[35]
[35]Cf., Cervi v Letcher (2011) 33 VR 320, 325 [15]-[16]. See also, Bottos v CityLink Melbourne Ltd [2021] VSC 585.
In this context, as I have indicated, much in the present case turned upon whether either party may be said to have had, variously, ‘bona fide occupation’, ‘ownership’ or ‘possession’ of all or part of ‘the fence’. To some extent, the terms were often used interchangeably throughout the trial. In any event, both parties sought to call in aid the doctrine of adverse possession. More will be said about that below; however, for present purposes it is sufficient to acknowledge that, for the relevant period, a claimant must establish –
(a) acts of possession constituting an appropriate or sufficient degree of exclusive and physical control of the land; and
(b) a present intention to possess the land, also described as the animus possidendi.[36]
[36]Riley v Penttila [1974] VR 547, JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, Whittlesea City Council v Abbatangelo (2009) 259 ALR 56, Cervi v Letcher (2011) 33 VR 320.
Notwithstanding the above, in closing address the plaintiff also sought to rely upon principles relating to the law or doctrine of fixtures, particularly as adumbrated by Lord Cranworth in Ramsden v Dyson–
If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to preserve in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.
But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights.[37]
[Counsel’s emphases]
Counsel also referred to a similar passage from the speech of Lord Wensleydale.
[37](1866) LR 1 HL 129, 140-141.
I do not accept that the above passages and principles have any present application. The fixtures doctrine concerns the ownership of fixtures as a consequence of the ownership of land to which they are affixed; not the other way around. Further, the doctrine arises in respect of the building of a fixture on the land of another. As I understand it, the plaintiff primarily contends that his predecessor constructed the ‘lower red brick wall’ on the title of 6 Shandford Avenue. Thus, even if it be assumed that such a construction could be a ‘fixture’, it is not building on the land of another. Moreover, I was referred to no passage in any of the adverse possession authorities in which any court has related the above principles to the doctrine of adverse possession.
In addition to the above, insofar as it was submitted that the fixtures doctrine could apply to the building of parts of the ‘high capped wall’ above the ‘lower red brick wall’, I am also unable to accept that it has any present application. The necessary relevant findings are presently unable to be made. Among other things, there was either no or insufficient evidence in order for me to feel any measure of persuasion either that Mr Murkies knowingly built the ‘high capped wall’ on the title to 6 Shandford Avenue or did so believing it to have been on 8 Shandford Avenue. I would not draw the necessary conclusions concerning the state of mind of either Mr Murkies or the Givonis merely from the circumstances in which the ‘high capped wall’ appears to have been built.
The plaintiff also relied upon the following proposition, stated by O’Bryan J in Walsh v Elson –
Where a wall is built on the boundary of two adjoining pieces of land so that the centre of the wall coincides with the boundary line, the adjoining owners are not the tenants in common of the wall, even though the wall was erected at their joint expense, but the property in the wall follows the property in the land upon which it stands.[38]
I pause to note that Walsh concerned issues of ‘ownership’ and an easement. It was not an adverse possession case.
[38][1955] VLR 276, 279 (‘Walsh’).
As to estoppel, there seemed to be little or no dispute between the parties that the doctrine will be made out where –
(a) a party acts in a certain manner;
(b) the other party relies upon that action (or representation or conduct); and
(c) relying party consequently suffers loss or detriment.[39]
[39]Sidhu v Van Dyke (2014) 251 CLR 505, [66]-[78], Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 and Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641, 674.
For its part, however, I acknowledge that the first defendant emphasised principles relating to the inferring of agreement.[40]
D Witnesses, inferences and other evidence
[40]Apple and Pear Australia Ltd v Pink Lady America LLC [2016] VSCA 280 [221] and Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd (2001) 117 FCR 424, 525 [369].
Mark Stansfield
The first witness for the plaintiff was Mark Stansfield, licensed surveyor. Mr Stansfield gave evidence with reference to his expert report dated 20 May 2020.[41]
[41]Exhibit A.
The essential substance of Mr Stansfield’s opinion was evident in the conclusion to his report, in which he stated as follows –
6.1 In my opinion the boundary within Section (E) as established by Kevin Barge LS and as adopted along the face of the northern single brick wall is incorrect and he should have adopted the centreline between the 2 single brick walls.
6.2 In my opinion the boundary within Section (E) as established by Myles Sewell in Application 140247E [ie, the 2017 Application] has attempt to adopt the same boundary as the Kevin Barge survey being along the face of the northern brick wall is incorrect and he should have adopted the centreline between the 2 single brick walls.
6.3 In my opinion the boundary within Section (D) as established by Myles Sewell in Application 140247E has adopted the centre of the northern single brick wall and he should have adopted the centreline between the 2 single brick walls.
6.4 In my opinion the boundary within Section (C) as established by Myles Sewell in Application 140247E has adopted the face of the double brick wall and is for practical purposes correct, albeit for some minor survey differences.
6.5 In my opinion the boundary as established within Sections (C), (D) and (E) as established by Myles Sewell in Application 140247E has attempted to introduce a series of steps in the boundary and has failed to observe that a practical straight line can be fixed in accordance with my survey as outlined in Section 4.3.6 above. Furthermore the intent of the original survey in LP14606 was to have a straight boundary without any introduced steps or bends.
6.6 In my opinion my survey has established that the boundary between Nos 6 and 8 Shandford Avenue is the centreline between the lower and higher single brick walls within Sections (D) and (E) and the northern face of the double brick wall within Section (C) which practically forms a straight boundary between the western extremity of Section (E) and the eastern extremity of Section (C).[42]
[42]Exhibit A, CB630.
At the time of Mr Stansfield’s report, the survey of Mr O’Halloran in 1980 had not been uncovered and so had not yet been considered.
Mr Stansfield addressed his opinions in oral evidence. He confirmed that the title boundary passed between what he described as ‘two single brick walls’ in sections D and E and along the face of the high capped wall in section C. He was ‘not sure’ when or how the ‘lower red brick wall’ was built, although he thought that it might have been built ‘to provide some support for the capped single brick wall’.[43]
[43]T183-184.
Mr Stansfield was of the view that the ‘lower red brick wall’ extended slightly into section C.[44] He was also shown the survey of Mr O’Halloran and considered it to show ‘two brick walls’ that were ‘shown as hatching on both sides’. He considered the survey to show the ‘centre line of those two brick walls’ to stand inside 6 Shandford Avenue by 1 centimetre.[45] As to the ‘brick fence’ shown in the O’Halloran survey, Mr Stansfield said –
It gives no indication on height, length. All it demonstrates is the position of both brick walls relative to the title boundaries in that corner.[46]
[44]T188-189.
[45]T197. Later in his evidence, Mr Stansfield identified a centimetre of difference as ‘nothing’ – see, T218.
[46]T198.
Mr Stansfield stated further, however, that –
The walls that are on the boundary between Sections C, D and E or within those sections, are not the same walls as that wall in the 1980 survey. The 1980 survey shows the join between the brick walls as 1 centimetre from the title boundary. My latest survey, which is the green line on my plan at the rear pier at the back it can be calculated that that is, in fact, 19 centimetres from the original title boundary.[47]
[47]T199.
In respect of the ‘wall now there’, Mr Stansfield stated –
The join between the two single brick walls is now 19 centimetres from the original title boundary. In 1980 it was only 1 centimetre. Both are standing inside No 6 property. So they can’t be the same brick wall. They can’t possibly be.[48]
[48]Ibid.
Mr Stansfield considered that the accuracy of the O’Halloran survey would depend ‘on how accurate the surveyor was doing it’, but ‘would be very accurate’.[49]
[49]Ibid.
Mr Stansfield was of the view that the survey of Mr Barge in 2001 had a ‘very big error … these things happen unfortunately’.[50]
[50]T201.
As to his own opinion, Mr Stansfield explained, in summary, that –
… I have defined the join between the two single brick walls as the boundary, lining up perfectly with the high – the face of the high brick wall, the capped high brick wall within section C.[51]
[51]T207. See also, later, in cross-examination, at T218.
He also did not agree with all aspects of the survey of Mr Sewell, particularly in respect of sections D and E.[52] Among other things, Mr Stansfield identified similarities and differences in the boundaries as defined by Mr Barge and Mr Sewell. As to the adoption by Mr Sewell of the ‘same’ measurement at the ‘rear leg’, Mr Stansfield said it was ‘probably because he’s established that it was the same occupation at the time’.[53]
[52]T209-212.
[53]T209.
Mr Stansfield’s opinions were challenged in cross-examination, but remained essentially unaltered.
Mr Stansfield confirmed that the difference between his opinion and that of Mr Sewell in respect of section E is ‘the width of a brick’.[54] He also confirmed that at section E the ‘high capped wall’ portion was ‘a decorative wall which has been built above two single brick walls’. He said that there were ‘two single brick walls which appear to be a double brick wall’.[55]
[54]T219.
[55]T225.
Mr Stansfield gave evidence about the abstracts of field records of Mr Barge and Mr Sewell respectively. As to the accuracy of that of Mr Barge, he said –
… it depends on how the surveyor had drawn these. They’re not to scale. They don’t always show everything. And particularly in a case like this, they probably wouldn’t show - - -[56]
[56]T236.
Mr Stansfield said that he did not know whether Mr Sewell had interpreted the boundary for section E or ‘just adopted the boundary from the previous survey [ie, that of Mr Barge]’.[57]
[57]Ibid.
Mr Stansfield confirmed that he practically agreed with Mr Sewell in respect of section C. The ‘main disagreement’ was in respect of sections D and E.[58]
[58]T237-238.
As to his instructions, Mr Stansfield confirmed that –
My instructions were to go out and do a survey and to find the boundaries as I felt it was. Or as I know it is. They were my instructions.[59]
[59]T238-239.
The issues were sections ‘C, D and E in particular’; section B ‘wasn’t the issue in question’.[60] Mr Stansfield had not been given specific instructions concerning ‘occupation of the wall’. He had also not been given any photographs of what the wall looked like previously.[61] He rejected the suggestion that he had simply adopted the assessment of Mr Pearce that there had been two single brick walls. He said ‘I haven’t adopted his finding. I’ve adopted my finding.’[62]
[60]T242.
[61]T243.
[62]T245. In respect of the survey of Mr Pearce, see also re-examination at T251-252.
Mr Stansfield confirmed that in undertaking work as a surveyor –
We look at the age of the fencing. We look at the type of the fencing. We look at where the fencing is defined as the boundary. I mean, for instance, a paling fence, the boundary is where the palings meet the rail. There’s Crown boundaries involved. There’s a lot of decisions that need to be made in relation to people’s properties.[63]
[63]T246-247.
In substance, Mr Stansfield confirmed that the difference between his opinion and that of Mr Sewell came down to the difference between their views concerning ‘occupation’.[64] Mr Stansfield said that the difference amounted to a different ‘interpretation of the boundary’, in respect to which he essentially acknowledged the potential significance of instructions from the client, albeit that ‘the client may not have been aware that those two single brick walls went through’.[65] In that regard, he acknowledged that determining adverse possession is ultimately ‘up to this Court’.[66]
[64]T247-249.
[65]T249.
[66]T249-250.
Mr Stansfield was a confident witness. He endeavoured to assist the Court. I reject the contentions of the first defendant that Mr Stansfield was not forthcoming and had difficulty making appropriate concessions.[67] I also reject the contention that Mr Stansfield ‘realised’ that he had ‘made the mistake’ about the ‘single capped wall in section E: that was not my sense of his evidence at all.[68] It does not follow, of course, that all aspects of his evidence must be accepted.
[67]First defendant’s outline of closing submissions dated 28 November 2021, [32] and [35].
[68]T1300.
Angelo Racovalis
Angelo Racovalis was the plaintiff’s builder in connection with the renovations undertaken at 6 Shandford Avenue between 2015 and 2018. Mr Racovalis gave evidence of both a lay and expert nature. His expert report was admitted into evidence.[69] In conclusion, his report stated –
[69]Exhibit E.
4.1 The brick wall between 6 and 8 Shandford Avenue [ie, the ‘lower red brick wall’] is currently supporting a section of the raised tile area (rear garden) shown on photos and the red brick grid structure is a footing system which interlocks with the entire brick wall (apart from the section that EBR [Mr Racovalis’ company] re-bricked). If the brick wall was removed in the future it would significantly compromise the structural integrity of the red brick grid system and the raised tiled section in the rear garden of the site [ie, at 6 Shandford Avenue].
4.2 In my opinion, the brick wall to the boundary and the supporting grid pattern brick support would have been constructed at the same time by the same contractor, as the same materials were found in the construction of these areas, and because the brick wall and the red brick grid structure are interlocked.[70]
[70]Exhibit E, CB734.
Mr Racovalis gave oral evidence that the render on the ‘lower red brick wall’ matched that on the house of 6 Shandford Avenue.[71] The ‘lower red brick wall’ had ‘cement based mortar’.[72]
[71]T261.
[72]T262.
He also gave evidence in respect of pool light fittings in the ‘lower red brick wall’ at 6 Shandford Avenue,[73] and the ‘privacy screen’, which had a footing foundation and steel columns ‘DynaBolted’ into the ‘lower red brick wall’.[74]
[73]T266-267.
[74]T275.
Mr Racovalis referred to the in-ground pool at 6 Shandford Avenue. He also identified a ‘red brick grid structure’. There were four red brick piers that connected the ‘grid structure’ to the ‘lower red brick wall’.[75] In his view, the ‘entire section, it had all the same red brick’.[76] It also had the same mortar.[77] In his view, it was likely to have been constructed about the time of the construction of the pool in the 1970s.[78]
[75]T279-280.
[76]T281.
[77]T283.
[78]T290-291.
In that regard, Mr Racovalis was taken to a set of plans that had been obtained from the Council. In that portion of his evidence, Mr Racovalis referred to the condition of 6 Shandford Avenue going back to the 1950s.
Mr Racovalis said that in bricklaying a wall it would have made sense – if it was all being done at the same time – ‘to use the same brick, front and back’.[79]
[79]T299.
Mr Racovalis gave evidence concerning the meeting on 2 November 2017, a subsequent meeting on 8 November 2017 and his various email communications with Mr Hirsch. Mr Racovalis confirmed that the attendees at the meeting at about 9am on 2 November 2017 had been, on the one hand, the plaintiff, Mr Racovalis, Mr Pearce (licensed surveyor) and Mr Nicolson (solicitor) and, on the other, Mr Hirsh and Mr Sewell (licensed surveyor).[80] Mr Racovalis’ evidence concerning the meetings and communications to which I have referred will be considered further in part F below.
[80]T300.
Towards the end of his evidence in chief, Mr Racovalis said, in respect of Mr Hirsch, that in ’25 years of building I’ve never met a man so hard to work with’.[81]
[81]T327.
Mr Racovalis was cross-examined at length. None of that, in my view, altered the substance of the evidence that I have outlined. I do not accept the submission of the first defendant that Mr Racovalis’ evidence and opinions were displayed to be ‘no more than speculation’ or that he was ‘unable to concede appropriate adjustments to his opinion’.[82]
[82]First defendant’s outline of closing submissions dated 28 November 2021, [55]-[56].
Mr Racovalis did confirm that the mortar in the ‘high capped wall’ at section C was different to the mortar at sections D and E.[83] He considered the ‘high capped wall’ to have ‘definitely’ been bricked ‘at a later period’ to the ‘lower red brick wall’.[84]
[83]T365.
[84]T366.
Mr Racovalis confirmed that he did not know the ‘internal composition’ of the bricks in the ‘high capped wall’.[85] He accepted that the ‘upper section’ of the ‘high capped wall’ in section E could be a double brick wall.[86]
[85]T375.
[86]T376
There was a challenge to Mr Racovalis’ recollections concerning the meetings on 2 and 8 November 2017, which included an implicit challenge to Mr Racovalis’ veracity as a witness. I have already indicated that I will consider that evidence in some greater detail below. However, I should make it clear that, by my assessment, Mr Racovalis endeavoured to give evidence dispassionately, accurately and from his recollection. He appeared to endure the process and to answer as best he could, no matter who was asking the questions. I reject any suggestion of partiality of any kind in the evidence of Mr Racovalis.
Ray Malone
The plaintiff described his former occupation as that of ‘corporate raider’.[87] He said that he was now retired from corporate life and runs his own investments.
[87]T448.
The plaintiff gave evidence that he purchased 6 Shandford Avenue in early January 2011. He moved in later that year and settlement seems to have occurred in 2012. 6 Shandford Avenue is the plaintiff’s principal residence.
The plaintiff gave evidence concerning the retention of Mr Pearce in 2016, in order to determine ‘where the boundaries were’.[88] That seems to have occurred as a consequence of Mr Hirsch’s assertions that he owned ‘the fence’.
[88]T456.
It was quite clear that relations between the neighbours were poor from the beginning. It was also clear that the plaintiff had kept himself out of the dealings with Mr Hirsch and left much of it to Mr Racovalis. At least part of the explanation for that seems to have been that the plaintiff had suffered a heart attack and was ‘avoiding stressful things’.[89] That said, the plaintiff described Mr Racovalis as having been ‘beside himself’ as a consequence of dealing with Mr Hirsch.[90] That seems to have been one of the explanations for the presence of a solicitor, Mr Nicholson, at the meeting on 2 November 2017. The plaintiff said ‘I needed some support too because I needed it to end’.[91]
[89]T498.
[90]T460.
[91]Ibid.
The plaintiff gave evidence concerning that meeting, which is considered in greater detail in part F below.
The plaintiff was cross-examined at length. In the course of cross-examination, the plaintiff confirmed that he had not wanted what became the ‘brush fence’ to extend all the way to the end of section E or to block the view from his terrace.[92]
[92]T483.
The plaintiff disagreed with Mr Hirsch’s version of the meeting on 2 November 2017. He gave evidence that he spoke directly with Mr Hirsch and reached agreements with him, including in respect of the removal of the ‘weld mesh fence’ in section B, the building of the ‘masonry fence’ and the retention of the ‘title boundary’.[93]
[93]T501-502.
Part of the cross examination concerned a contrast between the plaintiff’s evidence in relation to the meeting on 2 November 2017 and allegations made over time in the pleadings. I accept the plaintiff’s explanations concerning those matters. The plaintiff is not a lawyer. I do not regard the form of earlier pleadings as impugning his version of events.
Notwithstanding the above, the plaintiff had deficiencies as a witness. He tended to be discursive – in his own words, there were points where he was ‘rabbiting on’.[94] At those points, I had a degree of difficulty in understanding whether and how particular points were related as a matter of chronology. To some extent, that was ameliorated by later access to the transcript.
[94]T478.
In all the circumstances, I did not come to the view that the plaintiff was untruthful or even necessarily unreliable; merely that he was not good at giving chronological or sequential evidence. For these reasons, I have approached the contentious parts of his evidence with some care.
Leath Nicholson
The final witness called by the plaintiff was his solicitor, Leath Nicholson.
Mr Nicholson gave evidence concerning the circumstances in which he had known the plaintiff since about 2009 or 2010 and given advice to both the plaintiff and companies associated with the plaintiff.
Mr Nicholson became aware of the ‘agitation’ relating to ‘the fence’ in about 2016. He viewed it and took some photographs.[95]
[95]T544-547. See also, Exhibit L.
Mr Nicholson gave evidence concerning the meeting on 2 November 2017. As with the other relevant witnesses, that evidence will be considered in greater detail below.
Mr Nicholson was cross-examined at length. Part of the cross-examination was directed to establishing that Mr Nicholson’s firm had earned significant fees in advising both the plaintiff and companies associated with him. In that context, Mr Nicholson rejected the suggestion – expressly made – that he was ‘motivated’ to assist the plaintiff in ‘more than just an ordinary solicitor/client relationship’.[96]
[96]T565.
Like the plaintiff, Mr Nicholson was cross-examined concerning the pleadings, but confirmed that he had not been involved.[97] He was also cross-examined about other documents, steps taken in preparation of the case on behalf of the plaintiff and the circumstances in which his firm had ultimately ceased to act. Mr Nicholson answered those questions patiently and, in my view, sufficiently.
[97]T568.
Plainly, the cross-examination to which I have referred was intended to cast doubt upon Mr Nicholson’s veracity and integrity. It is sufficient to say that it did not achieve its objective. The next day, the suggestion made in respect of Mr Nicholson’s integrity was essentially abandoned, albeit that the cross-examination was said to remain relevant to ‘weight’.[98] In closing submissions, the first defendant contended that Mr Nicholson was ‘not an independent witness and the weight to be attributed to his evidence ought to be considered in this context’.[99]
[98]T646.
[99]First defendant’s outline of closing submissions dated 28 November 2021, [65].
None of the cross-examination to which I have referred caused me to be concerned about Mr Nicholson’s truthfulness or reliability as a witness. Indeed, Mr Nicholson impressed me as considered, careful and professional. The less said about the suggestions concerning his integrity and ‘independence’, the better. In the face of sustained challenge, Mr Nicholson maintained that he was just giving evidence of what he heard and saw. The manner in which he gave his evidence, in my view, underlined his truthfulness and reliability.
Michael Hirsch
Mr Hirsch was the first witness called on behalf of the first defendant. He gave evidence over several days.
Mr Hirsch was not an impressive witness. His manner was highly argumentative throughout a great part of his evidence. Much of it was dogmatic and superior in tone. Parts of his evidence contained elements of anticipatory defensiveness as well as an unreasonable reluctance to make straightforward concessions.
These features were combined, early in the cross-examination, with instances of unnatural pausing while Mr Hirsch seemed to calculate the ‘angle’ from which the cross-examiner might be coming. Once he settled in, Mr Hirsch tended to give evidence by way of argument rather than simple recollection and answer. Part of this style involved some instances of hatching further details or angles of argument that had not earlier been revealed or deployed. His whole manner was unsettling.
It seems to me to be possible that Mr Hirsch believes what he says to be true; indeed, rather definitely and defiantly so. However, the manner in which he gave much of his evidence left me unconvinced that it was being given via any true process of recollection or memory rather than via reconstruction influenced by considerations of overall interest. Having observed Mr Hirsch give evidence over many hours, it seems to me to be possible that the process is a wholly or partly unconscious one.
Putting aside whether Mr Hirsch was consciously untruthful as a witness or not (about which I make no ultimate finding one way or the other), I did not consider his evidence concerning contentious matters (and perhaps any matters at all) to be reliable. I have generally approached his evidence with a great degree of caution.
Mr Hirsch gave evidence-in-chief for roughly a day and a half and was subsequently cross-examined for about the same period. As with the other witnesses referred to in this part of the reasons, the following is not a summary of the whole of Mr Hirsch’s oral evidence at the trial.
Mr Hirsch gave evidence that he was an ‘investor’ and gave evidence of a work history in international finance.
He gave evidence concerning the purchase of 8 Shandford Avenue by Mr Murkies in 1980. Mr Hirsch plainly admired Mr Murkies. In 1980, Mr Hirsch was 23 years of age.
Mr Hirsch gave evidence of attending 8 Shandford Avenue in the period in which the old dwelling and, it seems, fences, were demolished and re-built by Mr Murkies in order to build a ‘dream home’. That was between about late 1982 and late 1983.[100]
[100]T656.
During construction, Mr Hirsch visited the site with Mr Murkies from time to time. Mr Hirsch gave evidence of the ‘laying of a course of red bricks for the north boundary wall, two or three courses, that’s my memory’. That was ‘in the area’ of sections D and E. He said it was ‘done early on’ and ‘when I next visited the wall was completed and there were other works covering that up’. He said that there were red bricks on the side facing 6 Shandford Avenue. He also said that there was ‘concrete block’ and ‘the split brick that the rest of the house is comprised of’.[101] Photographs of one of the split face concrete bricks were produced in evidence.[102] Mr Hirsch said that there were ‘several hundred’ such bricks in his basement.[103]
[101]T657.
[102]Exhibit 11.
[103]T658-659.
Mr Hirsch also gave evidence concerning the ‘weld mesh fence’ and the ‘privacy screen’.[104]
[104]T663.
Mr Hirsch gave evidence concerning discussions with Mr Murkies. Those were relied upon as going to his state of mind rather than the truth of their contents. Mr Hirsch gave evidence of a belief that the red bricks were used ‘because of the cost’ and also that the boundary between the two properties was in error.[105]
[105]T659-660, and T662-663.
Between early 1984 and late 1988 Mr Hirsch was living and working in New York City. He said that after he returned he noticed that ‘the Givonis had raised the terrace level’ on 6 Shandford Avenue by ‘4 or 500 millimetres’.[106]
[106]T673-674.
In respect of the neighbours at 6 Shandford Avenue, it was evident that Mr Hirsch had known the Givonis. He referred to their sons. It was also evident that he had known the subsequent neighbour, Mr Bardiger. They got on ‘very well’. Mr Hirsch said that there were no discussions with those neighbours concerning ownership of ‘the wall’.[107] He gave some evidence concerning Mr Bardiger and maintenance of the ‘privacy screen’.
[107]T675-677.
Mr Hirsch gave evidence concerning the survey undertaken by Mr Barge in 2001. Mr Hirsch said that he had told Mr Barge –
That the weld mesh fence and the other fences were built by my father-in-law and we were in occupation and ownership of those fences and they hadn’t moved since [they] were built in 1983, and it was in his opinion that the boundary should be along the north face of that fence to incorporate it into my property.[108]
[108]T682. See also, T686.
The 2001 Application was made when Mr Hirsch knew that the Givonis ‘had sold’ but they ‘may not have moved out’. He said that he was ‘not a hundred per cent sure on that’.[109] The Application was supported by statutory declarations made by Peter Atkinson, Adelaide Murkies and Andrea Murkies.[110]
[109]T686-687.
[110]Exhibit Q.
In respect to more recent times, Mr Hirsch gave evidence relating to the renovations at 6 Shandford Avenue commencing in 2015. There was a suggestion that, to some extent, the activities were able to be observed via CCTV.[111]
[111]T711.
Mr Hirsch took large swathes of photographs – mostly of or relating to ‘the fence’.[112] Some of the photographs were taken in 2008 and 2011, but larger numbers were taken on various dates after the renovations commenced in 2015. At various points it was evident that Mr Hirsch had been taking photographs while standing on the roof of the residence at 8 Shandford Avenue, on ‘the wall’ and, on one occasion, on a ladder looking over the front fence of 6 Shandford Avenue. It was also apparent that he had used a telephoto lens on one or more occasions.[113]
[112]Exhibits 14, 15, 17, 18, 19, 20, 26, 27, 28 and 29.
[113]T750.
Mr Hirsch referred to a letter to the plaintiff in 2015[114] and later correspondence with Mr Racovalis, including in respect of what he described as ‘illegal asbestos’.[115] He said that after that he did not have any ‘confidence’ in the plaintiff’s ‘word or his undertakings’.[116]
[114]Exhibit 7.
[115]Exhibit 2.
[116]T710-712.
Mr Hirsch gave evidence concerning an incident in mid-2017 in which he and Mr Racovalis had had a difference of opinion about the state of the ‘weld mesh fence’. Mr Hirsch took a considerable number of photographs and insisted that the ‘weld mesh fence’ was ‘dead straight’ and ‘perfectly upright’.[117]
[117]T740. Exhibit 26.
Mr Hirsch also gave evidence (and was later cross-examined) about the meetings on 2 and 8 November 2017, and subsequent correspondence and events. His evidence concerning those meetings is considered briefly below and further in part F.
As I have indicated, Mr Hirsch was cross-examined for roughly the same period as that for which he gave evidence in chief. The cross-examination did not really alter Mr Hirsch’s overall ‘narrative’. However, it was effective in that it served to reveal and confirm Mr Hirsch’s unreliability as a witness. In that regard, the following examples – which are by no means a complete recitation of the features of Mr Hirsch’s evidence which caused me concern – should be sufficient to highlight the difficulties in his evidence.
When asked about his evidence concerning the ‘two or three courses of red bricks’, Mr Hirsch said that he saw the construction ‘when the building of the red brick wall had been further progressed, not completed’. When his attention was drawn to his earlier evidence in chief – to the effect that when he had next attended ‘the wall was completed and there were other works covering it up’ – Mr Hirsch then said he ‘may have misspoke’, but denied changing his evidence.[118]
[118]T794-795.
After that, Mr Hirsch conceded that he could not say definitively that the ‘lower red brick wall’ was or was not ‘there’ before the old house at 8 Shandford Avenue was demolished.[119] He was also not sure exactly where the ‘two or three courses of red bricks’ had been put.[120] Notwithstanding that evidence, he later asserted that ‘that wall was not there prior to 1980’ (when Mr Murkies had purchased 8 Shandford Avenue).[121]
[119]T796.
[120]T800.
[121]T810-811.
When asked about whether a photograph taken by the first defendant’s expert structural engineer, Mr Smith, could be showing not the ‘lower red brick wall’ but ‘red bricks supporting the concrete slab’, Mr Hirsch initially answered it ‘could be’, but then qualified his answer to say ‘it is most definitely unlikely to be’. He then said that there was ‘no chance of it’.[122] In his evidence, Mr Smith acknowledged the possibility.[123]
[122]T805-806.
[123]T1143-1144 and T1151.
When asked about the complexity involved in building a wall with a combination of ‘red bricks and split concrete bricks’, Mr Hirsch said that the ‘exact same building methodology’ had been used when Mr Murkies had built the ‘southern wall’ (between 8 and 10 Shandford Avenue). He said that he had photographs that he could produce. Mr Hirsch later said that the building method in the ‘southern wall’ had been ‘split concrete block’ and confirmed that there were no red bricks.[124] No relevant photographs of the ‘southern wall’ were produced.
[124]T808-810.
Notwithstanding repeatedly insisting that Mr Murkies had built the ‘privacy screen’, Mr Hirsch did not in fact have a memory of it in 1982/83.[125]
[125]T797.
Further, when asked about whether the ‘privacy screen’ had provided a mutual benefit to both neighbours, Mr Hirsch replied ‘no’. He then acknowledged the possibility, but said the benefit to 6 Shandford Avenue was ‘secondary’. He then again denied that there was any mutual benefit.[126]
[126]T831-833.
When asked whether the ‘privacy screen’ had been built on the title to 6 Shandford Avenue, Mr Hirsch replied ‘no’. He later said ‘I don’t know’ before finally concluding ‘it appears so’. When asked whether he had known that at the time of the 2001 Application, he commenced upon an argument based upon what he claimed to have been told by Mr Barge.[127]
[127]T836-838.
When asked about a photograph that appeared to show a point at which a brick from one of the ‘piers’ or ‘spacers’ from the ‘grid structure’ on 6 Shandford Avenue had been ‘mitred’ into the ‘lower red brick wall’,[128] Mr Hirsch said that he knew what a mitre joint was;[129] but when asked about whether the photograph showed one said ‘I don’t know’. He then sought to say that the bricks appeared damaged.[130] In the course of that evidence, Mr Hirsch referred to the anticipated evidence of ‘our expert witness’ (ie, Mr Smith). Mr Smith’s expert report included a photograph of the wall together with the annotation ‘Mitred Pressed Red Bricks, cut with concrete saw’.[131] In his evidence in chief, Mr Smith readily acknowledged that a mitre joint was shown.[132]
[128]Exhibit 27, CB153.
[129]Cf., Exhibit FF.
[130]T884-885.
[131]Exhibit 32, CB853. See also, Exhibit 32, CB851 and CB852.
[132]T1119-1124.
In respect of the basis for his ‘impression’ that the terrace at 6 Shandford Avenue had been ‘raised’ in the period while he was in New York between 1984 and 1988, Mr Hirsch denied that his recollection could be mistaken. He acknowledged that in order to see the terrace he would have had to have looked over the ‘high capped wall’. When asked whether he would have to make a conscious effort to see and understand what was there, Mr Hirsch said ‘not really’ and ‘you have a quick glance and then look away’. When then asked whether he had only had ‘quick glances’, he said that he could not say ‘definitively’ how many times he looked and conceded that there had not been a conscious effort by him to look at what had occurred. He confirmed that he did not actually see the raising of the terrace which he says occurred.[133]
[133]T892-893.
Mr Hirsch was taken to the series of photographs that he had taken in response to Mr Racovalis’ contention that the ‘weld mesh fence’ had been in poor condition.[134] As in his evidence in chief, Mr Hirsch denied that any rotting was shown and asserted that ‘the weld mesh fence’ was ‘perfectly straight’. He said that the amount of vegetation shown was ‘negligible’. On the face of the photographs, however, the vegetation shown was not ‘negligible’ and it was debateable whether ‘the weld mesh fence’ was, in fact, ‘perfectly straight’.[135]
[134]Exhibit 26.
[135]See, Exhibit 26, CB130-150.
When Mr Hirsch was then taken to a photograph of ‘the weld mesh fence’ with a superimposed straight red line,[136] he initially accused counsel of placing the line ‘on an angle’. Later, he conceded that ‘the weld mesh fence’ was shown to move ‘by half a centimetre to a centimetre’. However, when then asked whether he would accept that it had moved, he said ‘no’. He accepted movement of ‘a negligible amount; certainly so small as to be invisible to the naked eye’.[137]
[136]Exhibit GG.
[137]T893-902.
As to the ‘rear pier’, he was asked whether it had been built by Mr Murkies and replied ‘substantially, … yes’. He then said that he did not believe that it ‘was built like that fully in 1980’. He conceded that he was not sure whether Mr Murkies had built it or not.[138]
[138]T970.
In respect of the ‘two tone colour’ of the ‘rear pier’, Mr Hirsch confirmed that he had not claimed title to the section with the ‘lighter colour’ in either the 2001 Application or the 2017 Application. When then asked why he had told Mr Racovalis that nothing could be attached to the ‘rear pier’, he said ‘maybe it was an error, a misstatement’ and ‘I don’t know’. When it was then pointed out that he had sought to stop Mr Racovalis from attaching anything to the rear pier, he said ‘not at all’. When the issue was further pursued, he said ‘maybe I misstated what I owned’.[139]
[139]T909-910.
Later, Mr Hirsch acknowledged that he had sent an email to Mr Racovalis in August 2016 in which he had said ‘you are not to touch in any way the pier’ and ‘damage the pier, you’ll be responsible for the costs of rectifying’.[140] He also acknowledged another email in July 2017 in which he had said that ‘there must be no fixtures or attachment into the pier’. In respect of that email, Mr Hirsch sought to suggest that he had not been ‘claiming any rights to the section of the pier not under my fence’. When it was pointed out that was not what his email had said, Mr Hirsch said ‘it might have been worded somewhat poorly’.[141]
[140]T924-925.
[141]T930-931.
Mr Hirsch confirmed that having been advised that the Givonis were selling 6 Shandford Avenue in 2001 had been the ‘trigger’ for him to engage Mr Barge. When asked about Mr Givoni, Mr Hirsch said that he was ‘still alive today, I believe’. He then retreated and said ‘my comment about Mr Givoni being alive … I wouldn’t stake my life on it, but I’m assuming that he is’.[142]
[142]T913.
When it was suggested that the Givonis may not have received notice of the 2001 Application, Mr Hirsch said ‘I couldn’t comment on that’. He was then asked whether the Givonis had been living at 6 Shandford Avenue at the time he said that he was ‘pretty sure that they were still there’. When it was pointed out that in evidence in chief he had said that he did not know one way or the other, he said ‘I can’t remember, I’m sorry’.[143]
[143]T915.
Mr Hirsch denied that there was any ‘element of opportunism’ in making the 2001 Application at a time when he knew that the Givonis were moving out, although he acknowledged that it ‘might appear like that’.[144]
[144]T922.
When asked about the replacement of the ‘privacy screen’ with the ‘brush fence’, Mr Hirsch said that he would have liked it to go ‘all the way at a constant height to the beach’ but that he had ‘no rights to insist on anything’.[145] Nonetheless, when later asked about his resistance to the tapering of the ‘brush fence’, he said that that his claim to a brush fence at a ‘constant height’ had been an ‘ambit claim’ and that if he ‘could ask for that and get a dramatic improvement in privacy’ he would be ‘happy’.[146]
[145]T932.
[146]T953.
When asked whether there had been agreement at the meeting on 2 November 2017 to remove the ‘privacy screen’, Mr Hirsch avoided the question. He then confirmed that there was no agreement concerning how ‘the replacement brush fence’ would be built.[147] Later, he conceded that on 2 November 2017 there had been agreement to remove the ‘privacy screen’. When then asked to confirm that he must have agreed to remove the ‘privacy screen’ in circumstances where it had not been agreed ‘what the brush fence would look like’, Mr Hirsch said ‘no, that’s not what you said’.[148]
[147]T940-941.
[148]T950-951.
Later, Mr Hirsch confirmed his evidence in chief that he had only become aware ‘recently’ that the ‘brush fence’ was attached to the ‘lower red brick wall’. He was then taken to an email of Mr Racovalis in April 2018 which stated ‘you required the [brush] fence to be affixed quite low down on Ray’s boundary wall’.[149] Mr Hirsch then speculated ‘maybe I didn’t take too much notice [of Mr Racovalis’ email]’. He then sought to assert a positive ‘reason’ why he had not responded to that email.[150]
[149]Exhibit HH.
[150]T962-963.
Mr Hirsch was further asked about his ‘recent’ awareness of the affixing of the ‘brush fence’ to the ‘lower red brick wall’ and taken to an email sent by him to Mr Racovalis in March 2018 which suggested an awareness of how it had been built.[151] He denied that that was so.[152]
[151]Exhibit HH.
[152]T983-984.
Mr Hirsch then confirmed that he had ‘intimate knowledge’ of ‘the fence’ ‘from my side’. When asked whether the affixing could be seen from his property, he said ‘not really’. He then said that he had become aware of the affixing when he had dropped a ‘metal screwdriver’ while he was up a ladder ‘tightening gutter supports’.[153]
[153]T984-985.
By contrast, in his evidence in chief Mr Hirsch had said that the connection could ‘only’ be seen ‘from my side’ and that he had discovered it while he was ‘clearing out my roof gutters’.[154] At an earlier point in his evidence in chief Mr Hirsch also said that he had seen the affixing when he ‘happened to look down’ while he ‘had to take some photographs’ at the request of counsel for the first defendant.[155]
[154]T775-776.
[155]T729.
In respect of the evidence of Mr Stansfield concerning ‘two separate walls’, Mr Hirsch said ‘he’s wrong’. Mr Hirsch was taken to a photograph taken by Mr Stansfield which includes an arrow and the annotation ‘centreline of 2 single brick walls’.[156] Initially, Mr Hirsch said ‘there’s a gap there, yes’. He then commenced upon a series of retreats in which he described it as ‘a slight crack’, ‘a hairline crack’, ‘a millimetre crack’ and then stated that the brickwork on the left was ‘almost married’ into that on the right.[157] The photograph – which relates to a section of ‘the fence’ highlighted in the course of the view[158] – clearly enough shows a gap; not a ‘hairline crack’.
[156]Exhibit A, CB714.
[157]T933-935.
[158]See, Notes and Photos from the View, Fig.4. Cf., Evidence Act 2008 (Vic) s 54.
When asked about the decision to make the 2017 Application, Mr Hirsch said that it had been made after the meeting on 2 November 2017.[159] He later said that when he and Mr Sewell had ‘regrouped’ at 8 Shandford Avenue, Mr Sewell had said ‘I think we can go ahead’.[160] Later still, Mr Hirsch was asked when instructions had been given and he confirmed that they were given to Mr Sewell on 2 November 2017. He then apologised and said that ‘it wasn’t done immediately’. He then said ‘I can’t exactly recall’. Finally, he said ‘I think maybe that afternoon or the next day or shortly thereafter I spoke to Mr Sewell’.[161]
[159]T917.
[160]T954.
[161]T964.
Mr Hirsch subsequently gave evidence in re-examination concerning particular topics, but by that point the damage was done. As I have indicated, his evidence in respect of contentious matters (and perhaps anything at all) is unreliable.
In light of the above, it will be evident that I cannot accept the submission of the first defendant that Mr Hirsch was ‘an impressive and forthright witness’ who ‘made appropriate concessions’.[162]
[162]First defendant’s outline of closing submissions dated 28 November 2021, [74].
Stephen Circosta
Stephen Circosta, licensed surveyor, was called to give evidence on behalf of the first defendant.
Mr Circosta had prepared letters directed to two distinct aspects of the dispute, namely the interpretation of the survey plan of Mr O’Halloran in 1980 and the opinion expressed by Mr Stansfield. Both opinions were discrete, and both were undertaken on the papers. Mr Circosta had seen ‘the fence’, but not before he provided his two letters.
As to the ‘post and rail and ti tree fence’ and ‘adjoining brick walls’ in the survey of Mr O’Halloran, the letter of Mr Circosta stated –
No indication is given on the plan as to the lengths of the aforementioned fences and where they end or possibly meet, nor is the relationship of the fences to the northern title boundary by offset indicated in this particular area.[163]
[163]Exhibit 31, CB248.
In respect of the opinions of Mr Stansfield, the relevant letter of Mr Circosta concluded as follows –
… it is the interpretation of the brick wall or walls that is in question. What is not addressed in Mr Stansfield’s report is the intention of Mr Sewell’s application survey. The intention was to rectify the survey computation and drafting error in Mr Barge’s Application Survey and not to interpret the brick wall in another way.
Mr Stansfield has also not entirely considered the intention of the application survey, which is based on bona fide occupation. Therefore, Mr Stansfield’s point regarding a straight-line boundary is somewhat irrelevant when referring to a bona fide application survey which is based on the interpretation and more importantly the location of the occupation.
Also, it is worth noting that Mr Stansfield agrees with adopting the northern face of the brick wall in Section (C) for ‘practical purposes’, however does not consider this as an option for Section (E).[164]
[164]Ibid CB255.
In that connection, earlier in his letter Mr Circosta had stated –
Section 5.3.6 of the report outlines Mr Stansfield’s method and opinion of his adoption of the western portion of the northern boundary within Sections (D) and (E). Mr Stansfield has interpreted that the brick wall is two single brick walls and has determined the centreline between the walls at the boundary.
This depends on the interpretation of the brick wall as viewed in Section (E). In Mr Stansfield’s opinion, he has identified two single brick walls. However, Mr Barge and Mr Sewell have determined the brick wall in section (E) as one inclusive double brick wall. Interpretations of the brick wall may differ, however the intention of the brick wall when built is of importance and should be considered. The question of whether the brick wall was intended to be built as a shared divisional brick wall, or alternatively built exclusively by the owner of No 8 Shandford Avenue should be reviewed. If the latter is deemed true, possessory rights may apply.
It appears that occupation has changed through the western portion of the northern boundary within section (D). Mr Barge and Mr Sewell have identified the occupation as pickets on brick in this location. However, Mr Stansfield makes no reference to this occupation in his report and Plan of Survey. This occupation appears to be critical as it is determining the boundary in Mr Barge and Mr Sewell’s surveys.[165]
[165]Ibid CB254.
In his oral evidence, Mr Circosta was directed to the opinion of Mr Stansfield that ‘the fence’ at section E comprises ‘two single brick walls’ and stated –
Although the interpretation of the brick wall may differ, what’s important and should be considered is the intention of when that brick wall was built and what was its purpose, was it to be shared, or was it exclusively built by a particular owner, and if the latter is true, then possessor’s rights may apply.[166]
[166]T1033. See also, in re-examination, T1055.
Mr Circosta thereafter gave evidence concerning ‘interpretation of the occupation’.[167]
[167]T1034-1036.
In his evidence, Mr Circosta confirmed that he had not been asked to undertake his own ‘cadastral’ or full ‘title re-establishment’ survey in order to determine the boundary between the two properties.[168]
[168]T1037.
In cross-examination, Mr Circosta confirmed that his work had amounted to a ‘desktop review of the paperwork’ rather than forming his own opinion about ‘possession’ and ‘the boundary’. He re-confirmed that those issues came down to ‘interpretation of the occupation’. He also re-confirmed that he was not asked to identify whether there ‘two walls or one wall’. He confirmed that the O’Halloran survey showed two ‘adjoining brick walls’ and the boundary between two walls.[169]
[169]T1043-1046.
At one point, Mr Circosta was asked about the significance of any connection between the red brick ‘piers’ and the ‘lower red brick wall’ and appeared unusually reticent to give any clear answer. He also said that it was ‘outside my area of expertise’.[170] That evidence was ultimately inconclusive and confused as much as anything else. I cannot form a concluded view that Mr Circosta was not impartial in the giving of that evidence. I otherwise regarded Mr Circosta as a witness who endeavoured to assist the Court.
[170]T1047-1049.
Andrea Murkies
Andrea Murkies is a director of the first defendant and the wife of Mr Hirsch. She said that her parents purchased 8 Shandford Avenue ‘in 1981’. She had a ‘very vague’ recollection of the then existing property.[171]
[171]T1072-1073.
She also had only ‘vague’ and ‘passing recollections’ of the fences. She spoke of a ‘ti tree-type fence’ and an old shed. It was not something that she took ‘great interest in’. The fence used ‘the same brick that the house was made from’. She remembered the ‘weld mesh fence’, but not the ‘lower red brick wall’. She recalled that there was a pool at 6 Shandford Avenue. She recalled the ‘privacy screen’, but was not exactly sure when it was built. She considered its purpose ‘clearly was to stop number 8 being overlooked from number 6’.[172]
[172]T1073-1080. See also, T1102-1103.
As Ms Murkies’ evidence unfolded, it was evident that her recollections tended to be rather vague and general, perhaps unsurprisingly having regard to her lack of real involvement in the dispute as well as the passage of time involved. To some extent, and perhaps also unsurprisingly, her evidence seems likely to have been influenced by things that she had been told by Mr Hirsch as well as his passionate convictions concerning the matter.[173] It follows that the style and vagueness of Ms Murkies’ evidence generally tends to limit its value. However, I should make it clear that I consider Ms Murkies to have endeavoured to give evidence truthfully.
[173]See, in particular, T1087-1088 (‘our understanding’, ‘he mentioned’ and ‘not a priority of mine at the time’), T1094 (‘we have different interests’), T1096 (reliance upon what her husband told her about the ‘asbestos’), T1097 (‘based on information that was presented to me at the time’) and T1098 (‘it was not a priority of mine at the time’).
Ms Murkies gave evidence concerning the 2001 Application to ‘realign the boundary to show our occupancy of the brick wall’. The application and statutory declarations were drawn by the solicitors. Their intention was to show ‘exclusive possession’ and ‘occupation’. After the application was granted, she ‘assumed that the entire brick wall was now on the title of number 8, and the weld mesh fence’.[174]
[174]T1081-1085. See also, T1099.
She thought that the Givonis sold ‘soon after’. She did not recall any conversation with the Givonis or Mr Bardiger concerning ‘the fence’. The first defendant was said to be responsible for maintenance.[175]
[175]T1085-1086.
She has not been involved in the dispute with the plaintiff. She had no relationship with the plaintiff and has never engaged in a conversation with him. She did not ‘lead’ the 2017 Application. She made another statutory declaration.[176]
[176]T1087-1088.
The cross-examination tended to confirm the vague and general nature of Ms Murkies’ recollections, to which I have earlier referred. The character of her evidence was confirmed rather than altered.
I should say that in the course of the cross-examination Ms Murkies referred to ‘cost cutting’ as an explanation for the ‘lower red brick wall’.[177] That answer had a particularly throwaway quality to it. I give it no weight.
[177]T1092-1093.
Andrew Smith
Andrew Smith was the final witness called to give evidence on behalf of the first defendant. He is a construction engineer with degrees in civil engineering and applied mathematics and physics.
Mr Smith prepared a report following his inspection of parts of ‘the fence’ from 8 Shandford Avenue.[178] He also conducted a ‘mortar test’.[179] Mr Smith reproduced a considerable number of photographs in his report accompanied by commentary and opinions.
[178]Exhibit 32.
[179]As to which, see Exhibit 32, CB831-832.
Among that commentary, Mr Smith ventured opinions that –
(a) there had been sections where the ‘Pressed Red Bricks’ [ie, the red bricks] were mitred into what he described as the ‘Pressed Red Brick Wall’ [ie, the ‘lower red brick wall’] on the side of 6 Shandford Avenue;[180]
[180]Exhibit 32, CB839.
(b) the ‘Pressed Red Brick Wall’ and the ‘rear pier’ and under the ‘Split Brick wall’ [ie, the ‘high capped wall’] has lime mortar whereas the ‘Split Brick wall’ has off white cement mortar;[181]
[181]Ibid CB841.
(c) the lime mortar at that point is the ‘same’ as that sighted by Mr Smith under the concrete slab at 8 Shandford Avenue (at the site of the mortar test);[182]
[182]Exhibit 32, CB842.
(d) the ‘foundation’ of the ‘Pressed Red Brick Wall’ is ‘nearly entirely on the title of No 8’;[183]
[183]Ibid CB843.
(e) the ‘Pressed Red Brick Wall’ is ‘likely to be the same wall shown … in the … O’Halloran Survey plan’;[184]
(f) the ‘Pressed Red Brick Wall’ was constructed by No 8 for the benefit of No 8, ‘prior to the Split Brick Wall being constructed’;[185] and
(g) the frame for the ‘privacy screen’ was constructed before the ‘Split Brick Wall’.[186]
[184]Ibid CB848. It is later clear that this is an assumption: see, Exhibit 32 CB860.
[185]Exhibit 32, CB849.
[186]Ibid CB857.
Some of those opinions appear to be either derived from or significantly influenced by aspects of the instructions, photographs and documents provided to Mr Smith. From his further researches, Mr Smith concluded that the ‘Pressed Red Brick Wall’ was likely to have been constructed before 1969.[187]
[187]Ibid CB859.
Mr Smith thereafter concluded as follows –
The Pressed Red Brick Wall [ie, ‘the lower red brick wall’] along the Public Way, based on the information above was constructed prior to 1980.
The Pressed Red Brick Wall under the Split Brick wall [ie, ‘high capped wall’] appears to have been constructed to the sole benefit of No 8 and is located on the land of No 8 (Lower portion of wall that was raised by the Owner’s (sic) of No 8).
From the photos presented, there is no benefit for the Pressed Red Brick Wall to the support [of] the raised terrace (Now demolished) located at No 6. The Pressed Red Brick Wall is separated from the raised terrace, due to the garden bed stub wall that separated the Pressed Red Brick Wall from the terrace structure.
The Owner of No 8 took the opportunity to construct a Split Brick wall over the Pressed Red Brick wall.
This conclusion is based solely on the photographic evidence and testing of the mortar done on 4/11/20.[188]
[188]Exhibit 32, CB862.
Mr Smith gave oral evidence concerning ‘the fence’, particularly sections D and E. He took a sample of the mortar from ‘the wall’ when he crawled into a tight space underneath the concrete slab and near the pool at 8 Shandford Avenue.[189] He later gave evidence that the mortar in the sample was ‘lime mortar only’ and therefore ‘likely that that wall is pre 1980’.[190]
[189]T1112-1113.
[190]T1125-1126.
Mr Smith was referred to the photographs and gave evidence concerning the ‘spacers’ shown between the ‘grid structure’ and ‘lower red brick wall’ at 6 Shandford Avenue (referred to elsewhere in the course of the hearing as ‘piers’, although Mr Smith disagreed with that description). He said that the ‘spacers’ provided ‘stiffening’ for the ‘stub wall’ at 6 Shandford Avenue; not the ‘party wall’ between the properties.[191]
[191]T1113-1122.
As I have earlier identified, Mr Smith noted that the connection was ‘mitred in’. He did not think that was far from where he took his sample. He also identified piers that had supported the ‘concrete terrace’ at 6 Shandford Avenue.[192]
[192]T1123-1124.
In cross-examination, Mr Smith was taken to further photographs and considered it to be unlikely that the ‘capped brick wall’ at sections C and D was constructed of any red bricks. Initially, Mr Smith said that closer to the beach there was a ‘double [red] brick wall’, although he acknowledged that he had ‘no way of knowing’ and that he did not have ‘x-ray vision’. He said ‘we will only know if we demolish it’.[193]
[193]T1129-1130.
(c) it was implicit in the evidence that relations between the Murkies and Givonis were agreeable;[410]
(d) that state of affairs is consistent with many aspects of the construction along the fence line undertaken by Mr Murkies: particularly, the building of part of the ‘high capped wall’ above the Givonis’ ‘lower red brick wall’, the replacement of the ‘ti tree fence’ (in which the Givonis likely had an interest) with the ‘weld mesh fence’ and the building of the ‘privacy screen’ (which Mr Murkies is said to have desired) on the side of 6 Shandford Avenue and there DynaBolted into the ‘lower red brick wall’; and
(e) further, Mr Smith identified that if the section of wall that he observed under the concrete slab at 8 Shandford Avenue is the ‘lower red brick wall’, then that has been used to support the concrete slab on that property – very likely since 1982/83.
[410]T674-675.
The circumstances to which I have referred are indicative of a considerable measure of co-operation between the neighbours in the works conducted along the fence line in 1982/83. In that, the circumstances suggest that the building of ‘the fence’ in that time amounted to further development of the entire fence line as a shared resource for the benefit of both neighbours.
In this sense, even if it was capable of being said that the Givonis built the ‘lower red brick wall’ wholly on the then prevailing title to 6 Shandford Avenue and so ‘owned’ and ‘possessed’ that land in the 1970s, the character of the overall fence line changed significantly in 1982/83. The building of the ‘high capped wall’ adjacent to and in significant part above the ‘lower red brick wall’, from that point, confirmed a shared and blended resource for the benefit of both neighbours.
In that regard, the Givonis had the uses of the ‘lower red brick wall’ which I earlier identified, but Mr Murkies now had at least the support to the ‘high capped wall’ provided by the ‘lower red brick wall’ being in parts underneath and alongside it.
From that point, in my view, at least in sections D and E, it was not possible to conclude merely from the form of ‘the fence’ that either neighbour had exclusive factual possession of the whole or any distinct part of it, or the land underneath or above it.
In addition to the above, Mr Murkies had the O’Halloran survey when undertaking the works to which I have referred, and a boundary between the properties is delineated in that document. That being the case, it is much more likely that Mr Murkies was mindful of that boundary and that his intention was to construct additions to the fence line in a manner that tended to conform with it or at least not alter it. It would be a strong thing to conclude that he had held the O’Halloran survey but nonetheless harboured an intention (of which there is no evidence) to dispossess his friendly neighbours of some part of their land.
Nor, as I have indicated, could I conclude that by building the structures to which I have referred, including choosing and using the ‘split face concrete bricks’ and the ‘weld mesh fence’, the Murkies must thereafter be taken to have been in exclusive factual possession of any land underneath or above ‘the fence’ in any manner not then delineated on the title. In that regard –
(a) in sections D and E, ‘the fence’ remained sturdy and wider than the boundary;
(b) those sections of ‘the fence' were visibly ornate (certainly when viewed from 6 Shandford Avenue);
(c) those sections of ‘the fence’ were also complicated in the sense that they comprised at least two different elements – namely the ‘lower red brick wall’ and the ‘high capped wall’ – that were integrated, at least in part, and, as I have indicated, one could not discount the presence of other elements of the structure;
(d) the ‘high capped wall’ has mutually benefited both neighbours in much the same way as explained earlier in connection with the ‘lower red brick wall’;
(e) it remained the case that the ‘lower red brick wall’ was used by the Givonis, as it had been since construction in the mid-1970s;
(f) the ‘weld mesh fence’ likely replaced a structure in which the Givonis had an interest and that part of ‘the fence’ was not in a form that could reasonably be said to say anything – of itself – concerning possession of the land underneath it (which could, after all, still be seen because the ‘weld mesh fence’ was predominantly made of wire);
(g) there was very little evidence of any maintenance of any part of ‘the fence’ after construction – other than the ‘privacy screen’, and I would not regard that as having been indicative of exclusive factual possession of either that structure or the ‘lower red brick wall’ to which it was affixed; and
(h) nor was there any evidence of either the Murkies or the Givonis seeking to ‘use’ or control the ‘other side’ of any part of ‘the fence’.
Notwithstanding the above, a significant part of the argument of the first defendant was directed to the use in the ‘high capped wall’ of the ‘split face concrete bricks’ that also appear in the house at 8 Shandford Avenue. As I have earlier noted, counsel developed that proposition by reference to several features of the house and fences at 8 Shandford Avenue (including the then corresponding ‘weld mesh fences’), but the centrepiece of the submission was very much founded in the ‘distinctiveness’ of the bricks, and their correspondence, aesthetically, with those used in the house and other fences. In that regard, early in the trial, counsel for the first defendant experimented with describing them as ‘architectural bricks’ (albeit that the descriptor seemed not to catch on in the evidence of the witness, Mr Stansfield).[411]
[411]See, T224-225. The descriptor made a return in final addresses: see, T1205, T1211, T1292 and T1300.
The use of the ‘split face concrete bricks’ is obvious, as is the aesthetic benefit to the proprietors of 8 Shandford Avenue, at least on the side of ‘the fence’ visible from 8 Shandford Avenue. However, that is not to say that there was and has been no benefit to the proprietors of 6 Shandford Avenue. The appearance of the ‘high capped brick wall’, to the extent that it has been visible on 6 Shandford Avenue, is not unattractive and also not wholly out of keeping with the colour of the render that has appeared on both the ‘lower red brick wall’ and the house at that property. The height of the wall also benefits both neighbours.
There is, of course, no evidence that the building of the ‘high capped wall’ using those bricks was resisted by the Givonis for aesthetic or any other reason. Further, it was not really suggested to any witness for the plaintiff – particularly the plaintiff himself or Mr Racovalis – that there was any distinct disadvantage or inconvenience to any proprietor of 6 Shandford Avenue (including the plaintiff) by reason of the fact that at points in ‘the fence’ visible from 6 Shandford Avenue the ‘split face concrete bricks’ of the ‘high capped wall’ could have been seen (prior to early 2018).
In this sense, the assumption in that aspect of the submissions of the first defendant – which seemed itself to have its origins in some of Mr Hirsch’s views concerning the use of the ‘split face concrete bricks’ and Mr Murkies’ overall building of ‘the fence’ – is much more apparent in argument and rhetorical flourish than real in any reliable evidence ultimately adduced.
Another feature of the ‘high capped wall’ emphasised by the first defendant was the fact that, at points of ‘the fence’ in sections D and E, it had been built on top of the ‘lower red brick wall’. It followed, it seemed to be said, that if it were not accepted that Mr Murkies had built the ‘lower red brick wall’, his building of the ‘high capped wall’ over parts of it produced a similar result, namely, the ‘enclosure’ of such of the ‘lower red brick wall’ as is underneath it. Conversely, it was said by the plaintiff that if it were found that his predecessor built the ‘lower red brick wall’ (which, of course, I have accepted) then it might be that he retained title to the land underneath it even if part of the ‘high capped wall’ were above it.
The reasoning of Gorton J in Bottos demonstrates that in some cases circumstances of this kind might be said to give rise to claims to ‘cubical space’. Neither party in the present case made any distinct claim of that kind in connection with the structures in sections D and E of ‘the fence’.[412] In any event, in the circumstances of the present case – as distinct from those considered by his Honour in Bottos – the fact that part of the ‘high capped wall’ was built over the parts of the ‘lower red brick wall’ says no more about ‘enclosure’ of the land either underneath or above it than the original building of the ‘lower red brick wall’ by the Givonis.
[412]I note that the plaintiff’s outline of closing submissions dated 29 November 2021 sought declarations in respect to, for example, the ‘land occupied’ by the ‘lower red brick wall or the airspace above it’: see, [146](d). That is a claim to all space rather than ‘cubical space’.
It follows from the above that, in at least the period from 1980 and until purchase of 8 Shandford Avenue by the first defendant in 1995, neither neighbour either intended to possess any land underneath or above ‘the fence’ in any manner not then delineated on the title, nor exclusively possessed any such land to the exclusion of the other neighbour. As is apparent, in my view, the history and construction of ‘the fence’ made it a complicated resource shared co-operatively between the neighbours and in respect of which there was no intention or occasion to consider the title boundary to be anywhere other than the then prevailing location.
After the purchase of 8 Shandford Avenue by the first defendant in 1995, the form of ‘the fence’ did not change until the works earlier referred to in the period between 2016 (when the angled section of the ‘privacy screen’ seems to have been removed) and early 2018 (when the ‘masonry fence’ and ‘brush fence’ seem to have been completed).
I do not accept that in that period – from 1995 to early 2018 – any of the relevant proprietors altered the character of the mutual sharing of ‘the fence’ fundamentally established in the mid-1970s and confirmed in 1982/83. Nothing changed in that time to cause any proprietor to enter into exclusive factual possession of the whole or, for that matter, any distinct part of ‘the fence’ not presumed to be in their possession as a consequence of the then prevailing ‘paper title’ (both before and after 2001).
As I have indicated, any maintenance in the period seems to have related to only the ‘privacy screen’, and that seems to have occurred as between Mr Hirsch and Mr Bardiger as a consequence of an agreement or understanding between them rather than via any assertion of exclusive factual possession.[413]
[413]T676 and T843.
It follows that, in that period, it remained the case that neither neighbour was in exclusive factual possession of either the whole or any distinct part of ‘the fence’ other than that reflected on the prevailing ‘paper title’.
In a sense, these conclusions concerning the issue of exclusive factual possession in and relevantly since 1995 are the end of the matter.
In any event, nothing seems to have changed in respect to the intentions of the relevant proprietors of 6 Shandford Avenue in the period to which I have referred. There was no evidence concerning the intentions of Mr Bardiger at any point.
As to the plaintiff, of course, he purchased 6 Shandford Avenue from Mr Bardiger. Although that contract of sale is not in evidence, it would be odd, to say the least, for the plaintiff to have thereafter assumed an intention concerning possession of ‘the fence’ that had not been displayed by Mr Bardiger.[414]
[414]Although, of course, I acknowledge that, on the evidence, an observation of this nature might arise in connection with the respective positions of Mr Murkies and, in practical terms, his successor, Mr Hirsch.
In any event, as I have noted, the plaintiff seemed broadly to have considered ‘the fence’ to be shared, until his concerns came to be provoked by, as he described it, ‘Mr Hirsch … trying to pinch my land’.[415]
[415]T456.
What did change were the intentions of the first defendant, principally via Mr Hirsch. It is unclear when his assertions concerning ‘his fence’ and ‘his wall’ commenced, although it is likely to have preceded the 2001 Application, which is, of course, more than 15 years prior to the 2017 Application. A significant part of the momentum in the claims of the first defendant in the present proceeding was sought to be derived by reference to those assertions and the length of time in which they have been expressed.
It may be acknowledged, of course, that the first defendant via Mr Hirsch has had that aspiration, but it does not follow that in and since that time the first defendant has exclusively possessed the whole or more particularly any distinct part of ‘the fence’ other than that which it would be presumed to be in possession of as a consequence of the prevailing ‘paper title’.
As I have indicated, notwithstanding Mr Hirsch’s assertions, in most of the period under consideration (at least until early 2015), the pattern and fact of possession of ‘the fence’ did not appreciably change and the first defendant was no more in exclusive factual possession of the whole of ‘the fence’ or any distinct part of it than the Murkies’ had been before it.
In addition to the above, in my view, it may very much be doubted that the intention thereafter expressed by Mr Hirsch, and thus the first defendant, was exclusively to possess ‘the fence’ and the land underneath and above it, rather than to ‘own’ it regardless of how it was possessed and used. For example, in the letter sent to the plaintiff in 2015, Mr Hirsch referred repeatedly to ‘the fence’ as his ‘property’.[416] As the Court of Appeal stated in Abbatangelo, however –
The intention that the putative adverse possessor must have, and must manifest, is an intention to possess exclusively, not an intention to own.[417]
[416]See, [4] above.
[417]Abbatangelo (n 363) [101].
For completeness, I should address the 2001 Application and the alteration of the title boundaries effected at that time. The plaintiff’s formal contention that the application was wrongly granted was ultimately not pressed.[418] It will be evident that the material placed before the Registrar had deficiencies. However, the determination was not said to have been procured by fraud and, in any event, the application is not now formally said to have been wrongly granted.
[418]T1253.
That said, the first defendant sought to contend that by granting the 2001 Application the Registrar had, in effect, accepted the logic of its claim in respect of ‘the fence’.[419] Notwithstanding the deficiencies in the underlying material to which I have referred, and the evidence and suggestions concerning the lack of any detailed examination by the Registrar of any claims to ‘bona fide occupation’ made in 2001, the simple fact is that no such ‘logic’ was expressly accepted. Among other things, the amendment effected at that time did not amount to granting to the first defendant the title to the whole of the land now sought under and above ‘the fence’ and, indeed, the 2017 Application has been brought by the first defendant in order to ‘correct’ that state of affairs.[420]
[419]T1294.
[420]Cf, submissions in final address by counsel for the plaintiff: T1253-1254.
The real significance of the alterations to the title boundaries effected in 2001 was that from that time the proprietor of 6 Shandford Avenue (including, in due course, the plaintiff – who, of course, purchased the property some 10 years later) was not deemed to be in possession of the whole of the land under and above the ‘lower red brick wall’ and, for that matter, nor was the first defendant. As identified by the Court of Appeal in Abbatangelo, the owner of land with the ‘paper title’ was deemed to be in possession of the respective parts of the land there identified. Further, and for the reasons which I have sought to explain, there was no sufficient contrary indication because neither party had exclusive factual possession of any ‘other’ parts of the land because ‘the fence’ on the ‘disputed land’ is and was at all relevant times shared.
The other potential significance of the granting of the 2001 Application, sought to be suggested by the first defendant, concerned the Givonis. To the extent that the first defendant seemed to suggest that the Givonis – in their capacity as proprietors of 6 Shandford Avenue – might have agreed in or at least consciously acquiesced in the first defendant’s claims to ‘the fence’ in 2001, I must reject it –
(a) as I have noted, the Givonis were not called, and their true state of mind and any quality of knowing acquiescence is unknown;
(b) Mr Hirsch gave no evidence of any discussion with the Givonis about ‘ownership’ of the boundary fence;[421]
(c) in any event, on one version of events given by Mr Hirsch, he knew that the Givonis ‘had sold’ at or about the time at which the application was made, albeit that he also said that they ‘may not have moved out’, ‘may have sold’ and that he was not ‘a hundred per cent sure on that’; [422] and
(d) whilst it is evident that the Registrar sent a letter to 6 Shandford Ave there was no documentary evidence confirming that the Givonis personally received that letter, or understood the meaning of it or consciously determined to accede to the claims made.[423]
[421]T677.
[422]T686-687.
[423]Exhibit S.
For those reasons, other than that the position of the boundary was then adjusted in the manner recorded on the Register, and ‘deemed’ possession of the land by the respective proprietors was altered accordingly, I do not regard the events in 2001 as having had any wider significance – then or now.
In particular, I do not consider the subsequent position as to ‘bona fide occupation’ to have been altered by the 2001 Application, the statutory declarations made in support of the 2001 Application or, indeed, those made in support of the 2017 Application.
I have already referred to the limitations in the 2001 statutory declarations. The 2017 statutory declarations were of an equally formulaic quality and made by members of the Murkies family. Indeed, Ms Murkies made statutory declarations on both occasions, and I have already referred to the rather vague state of mind evident in her evidence concerning ‘the fence’ and the role that the views of her husband may unconsciously (and perhaps quite understandably) have played in it.
In any event, there is plainly an awkward tension between the content of the statutory declarations made by essentially the same camps of declarants in 2001 and 2017 respectively.
Further, in my view, none of the statutory declarations really amount to evidence of the kind that, for example, satisfied the Court of Appeal in Abbatangelo.
It follows from the above, in my view, that neither party has made out its various claims to ‘possession’, ‘ownership’, ‘bona fide occupation’ or adverse possession of the whole or any distinct part of the ‘disputed land’ beyond that which they may be presumed to be in possession of as a consequence of the prevailing ‘paper title’.
In that regard, while, as I have indicated, each party has sought to advance its claims to their desired part of the ‘disputed land’ by reference to the opinion evidence of their favoured surveyor or surveyors, I do not accept that, for the requisite period either party has –
(a) been in exclusive factual possession of any distinct part of ‘the fence’ and associated land other than that to which they would each be presumed to possess by reason of the prevailing ‘paper title’; or
(b) intended to be in exclusive possession of any other distinct part of ‘the fence’ and associated land.
For completeness, I should add that it necessarily follows that the position cannot be altered by the parties’ respective appeals to ‘consistency’. For its part, the first defendant sought to emphasise that granting to it the land sought at section D would be essentially consistent with the title which it already held to the land at sections C and E.[424] By contrast, the plaintiff submitted that there was ‘common sense’ in the drawing by Mr Stansfield of a straight line through ‘the fence’ at section E and on to the face of ‘the fence’ at section C.[425]
[424]T1215-1216.
[425]T1267 and T1276.
The power in each contention, of course, is in its appeal to ‘order’, ‘common sense’, ‘straightness’ and ‘neatness’. Regrettably, however, for the historical and legal reasons that I have sought to outline, neither contention can be accepted. In the end, neither party has established either the exclusive factual possession or intention that are together necessary in order to alter the prevailing boundary.[426]
[426]In this regard, I acknowledge that the plaintiff’s outline of closing submissions dated 29 November 2021 included a suggestion that the Court might have a ‘discretion’ to direct the Registrar under s 103 of the Act (see, [143]). In oral addresses, however, it was not suggested that, in the present case, such a power might operate independently of either party establishing a substantive entitlement via the operation of the relevant provisions of the Limitation of Actions Act 1958 (Vic) and the doctrine of adverse possession (see, in particular, T1253-1256).
H Conclusions
It follows from the above that –
(a) neither party has established any claim to adverse possession and thus ‘bona fide occupation’ of their favoured part of the ‘disputed land’;
(b) consequently, no part of the presently subsisting title of either party has been extinguished by adverse possession or ‘bona fide possession’; and
(c) there is therefore no occasion for the Registrar to alter the presently registered title boundary.
It follows that most if not all of the declarations and other orders presently sought by both parties should not be made. In my view, no rights have been established such that the Register, in its present form, should be altered; at least insofar as the title boundaries are concerned.
The plaintiff has, however, succeeded in establishing that the 2017 Application should be rejected and that the Registrar should be directed accordingly.[427] The plaintiff’s caveat should, of course, also be removed.
[427]Plaintiff’s outline of closing submissions dated 29 November 2021, [146](f). Cf., T1238.
It is, of course, awkward that the presently registered title boundary is regarded by each party as having been established in error, particularly in respect of sections D and E. As I have explained, however, there are historical and other reasons for that state of affairs. As I have also sought to explain, it does not follow from the now mutual position of the parties that either has demonstrated a legal entitlement to any portion of the ‘disputed land’ that should see the title boundary moved and registered in a position different to that which presently subsists.
The agreement made at the meeting on 2 November 2017 must be taken to have the effect which was agreed. It follows that to the extent that the 2017 Application would seek to alter the position of the title boundary at section B it must be rejected for that further reason.
The effect of the above determinations concerning ‘bona fide occupation’ and adverse possession may, however, be that the agreement has no different effect upon the proper location of the title boundary at section B.
I will hear the parties concerning the form of orders, and costs.
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ANNEXURE 2
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